Carter v. Commonwealth Of Va.

• Decision Date: 10 June 2010
• Docket Number: Record No. 091895.
• Court: Virginia Supreme Court
• Parties: Jack Edward CARTERv.COMMONWEALTH of Virginia.

694 S.E.2d 590

Jack Edward CARTERv.COMMONWEALTH of Virginia.

Record No. 091895.

Supreme Court of Virginia.

June 10, 2010.

COPYRIGHT MATERIAL OMITTED

Robert P. Geary, Richmond, for appellant.

Erin M. Kulpa, Assistant Attorney General (Kenneth T. Cuccinelli II, Attorney General, on brief), for appellee.

Present: HASSELL, C.J., KOONTZ, KINSER, LEMONS, GOODWYN, and MILLETTE, JJ., and CARRICO, S.J.

OPINION BY Justice S. BERNARD GOODWYN.

In this appeal of a conviction for grand larceny, we consider whether asportation and assertion of ownership of property is sufficient to prove intent to steal that property.

Background

Jack Edward Carter was indicted by a Henrico County grand jury for stealing paint from a home improvement supply store (the store), in violation of Code § 18.2-95. Carter asserted at trial and in the Court of Appeals that the Commonwealth failed to prove he intended to steal the paint. At the conclusion of a bench trial, the circuit court convicted him of grand larceny and fixed his punishment at incarceration for a term of three years with the execution of two years and six months suspended. The Court of Appeals, in a published opinion, affirmed the judgment of the circuit court. Carter v. Commonwealth, 54 Va.App. 700, 709, 682 S.E.2d 77, 81 (2009). Carter appeals.

We will apply well-established principles of appellate review and thus, we will summarize the evidence in the light most favorable to the Commonwealth, the prevailing party in the circuit court. Barnes v. Commonwealth, 279 Va. 22, 35, 688 S.E.2d 210, 217 (2010); McMillan v. Commonwealth, 277 Va. 11, 15, 671 S.E.2d 396, 397 (2009).

On August 22, 2007, Jack Edward Carter and his friend Tracy Browning traveled by truck, with several other individuals, to a home improvement supply store in Henrico County. Pursuant to a pre-determined plan, Carter entered the store and placed four 5-gallon buckets of paint, valued at $398.92, in a shopping cart. Browning waited outside for a few minutes and then followed Carter into the store. Browning waited for Carter by the “returns” desk, where customers could take items, previously purchased from the store, for a refund of the purchase price. Carter approached Browning and gave her the shopping cart containing the buckets of paint. As planned, Browning represented that the paint had been previously purchased from the store and requested payment for its return. LeDawn Sawyer, an assistant store manager who was called to approve the return, recognized Browning as someone she had been alerted to look for. Sawyer obtained Browning's identification card and contacted a loss prevention employee, who summoned the police.

Police officers arrived at the store and spoke with Browning. Browning acknowledged the details of the plan she and Carter had made to seek a refund payment for paint that neither she nor Carter had purchased from the store. Browning admitted that “the deal was supposed to be that Mr. Carter was supposed to go into the [store], get some paint, bring it out somewhere [near] the refund desk. [Browning was] to go to the refund desk and ask for a refund on the paint.” There was no plan as to what she would do with the paint if the store refused to give her a refund.

The police officers received information from Browning regarding Carter's location and went to arrest him. Carter tried to flee, but the police officers apprehended him.

At the conclusion of the Commonwealth's evidence, Carter moved to strike the Commonwealth's evidence on the basis that the Commonwealth failed to prove that he and Browning intended to steal the paint. The circuit court denied the motion. Carter did not present any evidence, and renewed his motion to strike, which the court denied.

Analysis

Carter argues that, as a matter of law, the evidence presented by the Commonwealth was not sufficient to find him guilty of grand larceny because the Commonwealth failed to prove he had an intent to steal the paint. The Commonwealth claims that the asportation of the paint by Carter, and the assertion of ownership of the paint, pursuant to his plan, is sufficient evidence to support a finding that Carter intended to steal the paint so that it could be returned to the store for a refund.

Carter does not dispute that there was asportation of the paint by him, nor does he dispute that he and Browning were working together and that each is criminally responsible for the actions of the other. See McMorris v. Commonwealth, 276 Va. 500, 505-06, 666 S.E.2d 348, 350-51 (2008); Taylor v. Commonwealth, 260 Va. 683, 687-88, 537 S.E.2d 592, 594 (2000). His sole assignment of error concerns the allegation that the scheme he was involved in with Browning did not involve stealing the store's paint because, after asserting ownership of the paint, he and Browning planned to relinquish the paint upon receiving payment from the store, without removing the paint from the store. He notes there was no agreement as to what would be done with the paint if the store did not pay the refund.

When a defendant challenges the sufficiency of the evidence on appeal, the reviewing court must accord the judgment of the trial court sitting without a jury the same weight as a jury verdict. Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312, 314 (1998); Saunders v. Commonwealth, 242 Va. 107, 113, 406 S.E.2d 39, 42 (1991); Evans v. Commonwealth, 215 Va. 609, 613, 212 S.E.2d 268, 271 (1975). It is the appellate court's duty to examine the evidence that tends to support the conviction and to uphold the conviction unless it is plainly wrong or without evidentiary support. Code § 8.01-680; Commonwealth v. Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265 (1998); Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871 (1998); Tyler v. Commonwealth, 254 Va. 162, 165-66, 487 S.E.2d 221, 223 (1997). In making this determination, the appellate court must examine the evidence in the light most favorable to the Commonwealth. Jenkins, 255 Va. at 521, 499 S.E.2d at 265; Walton, 255 Va. at 425-26, 497 S.E.2d at 871.

In Virginia, larceny is a common law crime. We have defined larceny as “ ‘the wrongful or fraudulent taking of personal goods of some intrinsic value, belonging to another, without his assent, and with the intention to deprive the owner thereof permanently.’ ” Skeeter v. Commonwealth, 217 Va. 722, 725, 232 S.E.2d 756, 758 (1977) (quoting Dunlavey v. Commonwealth, 184 Va. 521, 524, 35 S.E.2d 763, 764 (1945)); see also Payne v. Commonwealth, 222 Va. 485, 487, 281 S.E.2d 873, 874 (1981). Stated simply, larceny requires that there be a taking and asportation of the seized goods, coupled with an intent to steal those goods.¹Britt v. Commonwealth, 276 Va. 569, 575, 667 S.E.2d 763, 766 (2008); see Bryant v. Commonwealth, 248 Va. 179, 183, 445 S.E.2d 667, 670 (1994); Mason v. Commonwealth, 200 Va. 253, 256, 105 S.E.2d 149, 151 (1958). “The defendant's intent to steal must exist at the time the seized goods are moved.” Britt, 276 Va. at 575, 667 S.E.2d at 766.

We have stated that “[i]ntent is the purpose formed in a person's mind at the time an act is committed.” Taylor, 256 Va. at 519, 506 S.E.2d at 314; see Guill v. Commonwealth, 255 Va. 134, 139, 495 S.E.2d 489, 492 (1998); Ridley v. Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979). “Intent may, and often must, be inferred from the facts and circumstances of the case, including the actions of the accused and any statements made by him.” Stanley v. Webber, 260 Va. 90, 96, 531 S.E.2d 311, 315 (2000); Taylor, 256 Va. at 519, 506 S.E.2d at 314; see Guill, 255 Va. at 139, 495 S.E.2d at 492; Ridley, 219 Va. at 836, 252 S.E.2d at 314. It is undisputed that at the time he picked up the paint, Carter intended to have his accomplice assert ownership of the store's paint without paying the store for that paint, and to ask the store to pay for its return. True to their scheme, Carter's accomplice moved the paint, represented ownership of that paint to the store's employee, and requested a refund payment.

Common law larceny requires a trespassory taking. Maye v. Commonwealth, 213 Va. 48, 49, 189 S.E.2d 350, 351 (1972); Overstreet v. Commonwealth, 17 Va.App. 234, 236, 435 S.E.2d 906, 907 (1993). Carter, in essence, asserts that there was no trespassory taking and intent to permanently deprive the store of its paint because his scheme did not involve the paint being at any time physically removed from the store. At the core of Carter's defense is the issue of what constitutes sufficient possession and asportation to sustain a conviction for larceny from a self-service retail store.

A trespassory taking is a taking or removal of possession of property from the owner with felonious intent; a violation of an owner's possessory right constitutes a trespassory taking. Richards v. Commonwealth, 54 Va. (13 Gratt.) 803, 806 (1856); Overstreet, 17 Va.App. at 236, 435 S.E.2d at 907-08. Because every customer in a self-service store has implied permission to move merchandise, placed on open display, unconcealed about the premises of the store, the trespassory taking and carrying away of the merchandise of another does not usually occur at such a store when the property is moved on the premises. If, however, there is some conduct by the customer which makes the customer's possession clearly adverse to the store, there is a trespassory taking. Freeman v. Meijer, Inc., 95 Mich.App. 475, 291 N.W.2d 87, 89 (1980); see Jones v. State, 55 Ala.App. 274, 314 So.2d 876, 878 (Ala.Crim.App.1975).

A trespassory taking is most easily proven by a defendant leaving the store without paying for merchandise. However, removal of the targeted property from the owner's premises is not required for there to be a trespassory taking, and permanent loss by the owner is not a required element of larceny. Whalen v. Commonwealth, 90 Va. 544, 549, 19 S.E. 182, 183 (1894). “One may be said to have taken another's property by trespass though he has not...